Last Friday Wayne County Circuit Judge Cynthia Hathaway, who presided over the Theodore Wafer trial, dismissed an involuntary manslaughter charge against Detroit police officer Joseph Weekley who shot and killed seven-year-old Aiyanna Jones while serving an arrest warrant for Chauncey Owens at 4054 Lillibridge Street on the eastside of Detroit. She dismissed the charge during Weekley’s retrial. A jury was unable to reach a verdict during his first trial last summer.

The incident took place on May 16, 2010. Wikipedia describes what happened.

On Friday, May 14, 2010, Southeastern High School senior Je’Rean Blake (other reports call him Je’Rean “Blake” Nobles) was shot and killed near the intersection of Mack and Beniteau on Detroit’s east side. By Saturday night, police had identified Chauncey Owens as a suspect in the shooting and obtained a warrant to search 4054 Lillibridge St, where he was believed to be hiding.

/snip/

According to press reports, police were on the scene by 12:40 a.m. on Sunday, May 16, 2010. In an attempt to distract the occupants, police fired a flash grenade through the front window.

Police officers, bystanders, and residents of the home disagreed about the events that followed. According to police, Officer Joseph Weekley was the first one through the door. He pushed his way inside, protected by a ballistic shield. Aiyana Jones’ paternal grandmother Mertilla Jones attempted to grab his gun, causing it to fire. The bullet struck Aiyana. “A woman inside grabbed my gun,” Weekley said. “It fired. The bullet hit a child.”

Mertilla Jones was held overnight and released. She said she reached for her granddaughter when the grenade came through the window, not for the officer’s gun. She said she made no contact with them. Geoffrey Fieger, the family’s lawyer, said the police fired the shot that struck Aiyana from outside the home, possibly through the open front door.

After the shot was fired, Weekley reported to his sergeant that a woman inside had grabbed for his gun. Police arrested Mertilla Jones, administered tests for drugs and gunpowder, and released her Sunday morning. Mertilla said that she reached for Aiyana but had no contact with officers. (At Weekley’s retrial in 2014, it was disclosed that Mertilla’s fingerprints were not found on Weekley’s gun.)

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The prosecution filed an emergency motion in the Michigan Court of Appeals seeking to set aside her order, but the court denied the request and remanded the case to the trial court yesterday.

The lawyers are presenting their final arguments to the jury today on the only charge remaining, which is reckless use of a firearm, a misdemeanor.

The three Court of Appeals judges released their order Monday afternoon.

“Because the oral granting of defendant’s motion (to dismiss the charge) and the trial court’s entry of its written order to this effect took place before any appellate review was able to occur, this Court is barred from reviewing the trial court’s decision,” the court wrote.

“The Court of Appeals correctly decided the issue,” Weekley’s attorney, Steve Fishman, said in an e-mail.

Prosecutors disagreed and filed an emergency motion for reconsideration with the Court of Appeals, which was later denied.

One of the appeals judges, Presiding Judge Michael Talbot, concurred with the decision but added: “Although I find that the trial court erred in form and substance in granting defendant’s motion for directed verdict, we are barred from reviewing that decision.”

I write today to discuss Judge Hathaway’s decision, the prosecution’s appeal and the decision by the appellate court.

When a judge grants a motion for a directed verdict of acquittal on a particular charge in a criminal case, that means that she has decided not to permit the jury to decide whether the prosecution proved that charge beyond a reasonable doubt

A judge cannot do that unless she concludes that, even if she assumes that the evidence introduced by the prosecution is true, together with all reasonable inferences to be drawn from that evidence, that nevertheless no reasonable juror could conclude beyond a reasonable doubt that the defendant committed that offense. This is a stern test, so defense motions for a directed verdict are rarely granted.

I find it difficult to believe that, assuming Mertilla Jones told the truth, a reasonable juror could not have found Weekley guilty of involuntary manslaughter.

Nevertheless, Judge Hathaway has formally acquitted Weekley of involuntary manslaughter and her decision has invoked the Double Jeopardy Clause preventing a retrial on that charge.

When a judge grants a motion for a directed verdict and acquits a police officer in a controversial shooting-death-of-a-child case like this one, she is asking for trouble.

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